Bedenarzik v. State , 204 Ind. 517 ( 1933 )

DISSENTING OPINION. We agree with the majority opinion that the law, as heretofore declared by this court, makes the determination of the question of probable cause a judicial function; and also we agree that it is settled law in this state that an "affidavit on information and belief and containing only affiant's conclusion upon the question of probable cause is not of itself a sufficient basis for the issuance of such warrant." We think, however, that it has been equally well settled in this state that an affidavit on information and belief supplemented by oral testimony showing probable cause is legally sufficient to satisfy both constitutional and statutory conditions precedent to the issuance of a search warrant. Clearly the foregoing was assumed by this court in the recent case of Mata v. State (1932),203 Ind. 291, 179 N.E. 916. We think that the reasoning and holding of the Mata case and of the earlier cases upon which it rested were in harmony with the long recognized rule that a reviewing court will presume that an inferior court has acted properly in the absence of an affirmative showing to the contrary; and gave reasonable protection to the legitimate interests of an accused and did not unduly hamper officers who carry the heavy burden of protecting society against criminal depredations.

There is no occasion to extend this opinion since the 78th General Assembly, by Senate Bill No. 294, approved March 11, 1933, has provided that the affidavit upon which the search warrant is issued shall contain the facts constituting the probable cause. As soon as this statute becomes effective there will be no doubt about either the form or the substance of the law respecting the procedure involved in the determination of probable cause for the issuance of a search warrant.